Thompson v. Board Of Education City Of Chicago et al

Filing 56

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 1/29/16Mailed notice(ca, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DR. MARK THOMPSON,
Plaintiff,
v.
CITY OF CHICAGO BOARD
OF EDUCATION et al.,
Defendants.

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No. 14-cv-6340

Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Mark Thompson, a former teacher for Chicago Public Schools (CPS), brings numerous
statutory and constitutional claims relating to his time as a teacher and the eventual termination
of his employment. Defendants—the Chicago Board of Education and several Board
employees—move to dismiss all claims. For the reasons provided below, their motion is granted
in part and denied in part.
I. Factual & Procedural Background
A. Thompson’s Career at Harlan High
Thompson began teaching at Harlan Community Academy High School in January 2008.
Am. Compl. ¶ 4. He wanted to teach physical education, but he was assigned to teach history
instead. Id. ¶ 14. In a 2012 performance review, he was rated “unsatisfactory” as a history
teacher. Id. ¶ 22.
Unrelated to his teaching performance, Thompson was twice suspended without pay. The
first suspension, in March 2011, concerned accusations that he had provided pills of an
unspecified kind to student athletes. Id. ¶ 36. The second suspension, in September 2012,

concerned an accusation that he had sexually assaulted a minor. Id. ¶ 37. As part of an
investigation into the assault accusation, the Board’s Inspector General, Defendant Sullivan,
issued a subpoena to AOL seeking Thompson’s personal emails. Id. ¶ 76; Ex. A. The
Department of Children and Family Services (DCFS) also investigated the sexual-assault
accusation, ultimately determining it was “unfounded.” Id. ¶ 131. Thompson was not criminally
prosecuted. Id. ¶ 171 n.4.
The Board notified Thompson in August 2013 that it was terminating his employment,
ostensibly for budgetary reasons. Id. ¶ 32; Resp. Br., Ex. D. The Board did not attribute its
decision to Thompson’s performance as a teacher or to his alleged misconduct and suspensions.
Am. Compl. ¶ 32; Resp. Br., Ex. D. 1 But months later, in rejecting a grievance filed by
Thompson’s union, the Board explained that his “unsatisfactory” rating had been a factor in its
termination decision. Am. Compl. ¶ 33; Resp. Br., Ex. E.
B. Earlier Lawsuits
Thompson first sued the Board and employees of the Board in 2011. He filed his
complaint in the Circuit Court of Cook County, and the defendants removed the case to federal
court, where it was assigned to Judge Guzmán. Thompson’s claims in that case (the “2011
federal case”) included discrimination and retaliation claims under Title VII of the Civil Rights
Act of 1964. The claims were based primarily on the “pill” investigation, the resulting
suspension, and Thompson’s “unsatisfactory” rating as a history teacher. He had not been fired
yet when the operative complaint was filed.

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Although Thompson did not attach these communications from the Board to his complaint, he referenced
them in the complaint and attached them to his response brief. The Court may properly consider them in
deciding a motion to dismiss. See Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013) (“What makes
it appropriate for us to consider the documents ... is that [plaintiff] not only cited them in the body of her
complaint, but she has, to some degree, relied on their contents as support for her claims.”).

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Judge Guzmán entered summary judgment in favor of the defendants on most claims but
permitted Thompson to proceed on a claim that he had been suspended in retaliation for an
earlier EEOC complaint. See Thompson v. Bd. of Educ. of City of Chicago, No. 11 C 1712, 2014
WL 1322958, at *9 (N.D. Ill. Apr. 2, 2014). Thompson and the defendants settled the case in
January 2015.
Thompson also sued the Board and its employees in the Circuit Court of Lake County
(“Lake County case”). See Thompson v. Board of Education Township High School District 113
et al., Case No. 13 L 879. Resp. Br., Ex. D. That case, filed in November 2013, included various
state-law claims related to the sexual-assault investigation, including a claim that Board
employees and the accuser conspired to deprive Thompson of his job. The defendants’ motion to
dismiss was granted in August 2014, see id., Ex. E, and Thompson appealed. His appeal is still
pending.
While both of those cases were proceeding, Thompson, acting pro se, filed three separate
lawsuits that were consolidated into this single case. The operative complaint is a twelve-count
amended complaint that he filed following consolidation. [Doc. 26.]
II. Legal Standard
In deciding a motion to dismiss, the Court views the complaint in the light most favorable
to the plaintiff and accepts all well-pleaded facts as true. Lavalais v. Vill. of Melrose Park, 734
F.3d 629, 632 (7th Cir. 2013). A “complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Pro se complaints are
construed liberally. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013).

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In addition to the complaint, a court deciding a motion to dismiss considers exhibits
attached to the complaint, other documents referenced in the complaint, and information that is
properly subject to judicial notice. Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1019–
20 (7th Cir. 2013). Judicial notice may be taken “of prior proceedings in a case involving the
same litigant.” Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1173 (7th Cir. 2010). The Court
can “consider judicially noticed documents without converting a motion to dismiss into a motion
for summary judgment.” Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 456
(7th Cir. 1998).
III. Analysis
Defendants move to dismiss all of Thompson’s claims, many of them on multiple
grounds. Before analyzing the claims individually, the Court will address Defendants’ argument
that the outcome of the Lake County case precludes several of Thompson’s claims.
A. Preclusive Effect of the Lake County Case
Defendants argue that the trial court’s judgment in the Lake County case bars many of
Thompson’s current claims, and they move to dismiss on that basis. Preclusion is not one of the
grounds for dismissal listed in Federal Rule of Civil Procedure Rule 12(b), and normally a
preclusion defense must be raised in the answer to a complaint. Muhammad v. Oliver, 547 F.3d
874, 878 (7th Cir. 2008). One exception is if the complaint itself discloses that the claims are
precluded. Id. Another is if the error of raising the preclusion defense before answering “is of no
consequence” because the Court has before it everything “needed in order to be able to rule on
the defense.” Carr v. Tillery, 591 F.3d 909, 913 (7th Cir. 2010).
Whether a state-court judgment precludes claims in a subsequent federal case depends on
the preclusion rules of the particular state. 28 U.S.C. § 1738; Rogers v. Desiderio, 58 F.3d 299,

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301 (7th Cir. 1995). In Illinois, the “doctrine of res judicata [claim preclusion] provides that a
final judgment on the merits rendered by a court of competent jurisdiction bars any subsequent
actions between the same parties or their privies on the same cause of action. Res judicata bars
not only what was actually decided in the first action but also whatever could have been
decided.” Hudson v. City of Chicago, 889 N.E.2d 210, 213 (Ill. 2008) (citation omitted).
Some of the elements of claim preclusion are clearly met here. The Lake County case
was dismissed on the merits; Defendants were all either defendants in the Lake County case or
were in privity with those defendants; and some of Thompson’s claims in this case are based on
the same facts as claims in the Lake County case. (For example, both cases include claims
regarding a subpoena issued to AOL and Thompson’s ultimate firing.) Although Thompson
relies on new legal theories, that cannot save his claims from being precluded. See Carr, 591
F.3d at 913–14 (“You cannot maintain a suit, arising from the same transaction or events
underlying a previous suit, simply by a change of legal theory. That is called ‘claim splitting,’
and is barred by the doctrine of res judicata.”). And although many of Thompson’s current
claims rely on federal law rather than state law, that too is unavailing because Illinois courts have
jurisdiction over most federal claims, including Title VII claims, see Dookeran v. Cty. of Cook,
Ill., 719 F.3d 570, 576–77 (7th Cir. 2013), and Thompson undoubtedly could have brought some
of his current claims in the Lake County case.
That said, there is an open question as to whether a final judgment on the merits has been
rendered in the Lake County case. Thompson has an appeal pending, and Illinois law is unclear
on whether a trial court’s judgment is final for purposes of claim preclusion during the pendency
of an appeal. See Rogers v. Desiderio, 58 F.3d 299, 302 (7th Cir. 1995) (“To be blunt, we have
no idea what the law of Illinois is on the question whether a pending appeal destroys the claim

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preclusive effect of a judgment.”). As the Seventh Circuit explained in Rogers, the Illinois
Supreme Court, in Ballweg v. Springfield, 499 N.E.2d 1373, 1375 (Ill. 1986), held that the filing
of an appeal suspends the collateral estoppel (issue preclusion) effect of a circuit court’s
judgment. Rogers, 58 F.3d at 302. Several Illinois appellate courts have extended Ballweg to
claim preclusion. See id. Other Illinois appellate courts have treated a trial court’s judgment as
preclusive despite a pending appeal without addressing Ballweg. Id. The Illinois Supreme Court
has not clarified the issue in the 20 years since Rogers was decided.
Defendants ask the Court to follow the line of Illinois cases that ignores Ballweg and
treats the final judgment of a trial court as having preclusive effect even when an appeal is
pending. Reply Br. at 6. But that is not the course laid out in Rogers, where a stay rather than
dismissal was endorsed. Rogers, 58 F.3d at 302 (citing Colorado River Water Conservation Dist.
v. United States, 424 U.S. 800, 817–21 (1976)). Neither action is necessary at this point,
however, because Defendants can argue their preclusion defense after filing an answer.
Thompson’s appeal could be resolved by then. If not, the Court will assess whether a stay is
appropriate at that time.
In addition to their preclusion arguments based on the Lake County case, Defendants
argue that some of Thompson’s claims are precluded by the judgment in the 2011 federal case.
The judgment in that case is unquestionably final, and the case plays a central role in many of
Thompson’s claims. Its preclusive effect is addressed in the Court’s analysis of Thompson’s
individual claims, to which I will now turn.
B. Count I – Retaliatory Discharge
Thompson claims in Count I that the Board fired him in retaliation for bringing the 2011
federal case. Title VII prohibits employers from retaliating for protected activity, 42 U.S.C.

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§ 2000e–3(a), and the filing of a discrimination lawsuit is certainly protected activity, O’Neal v.
City of Chicago, 588 F.3d 406, 409 (7th Cir. 2009).
In support of his claim, Thompson explains that the Board informed him that he had lost
his job during discovery in the 2011 federal case. Am. Compl. ¶ 31. The Board initially
attributed its decision to budgetary considerations and Thompson’s status as a “temporarily
assigned teacher or part-time teacher.” Resp. Br, Ex. D. Thompson was actually a tenured
teacher, however, so his union filed a grievance on his behalf. Am. Compl. ¶ 56; Resp. Br.,
Ex. E. The Board denied the grievance, offering a new explanation for terminating his
employment: budgetary considerations combined with his “unsatisfactory” rating. Am. Compl.
¶¶ 32–33; Resp. Br., Ex. E. 2 According to Thompson, the Board relied on the “unsatisfactory”
rating despite knowing that it was fraudulent. He also alleges that a grievance about the
“unsatisfactory” rating remains pending, meaning that the Board used the rating to justify his
dismissal without waiting for the grievance to be resolved.
1. Claim preclusion (res judicata)
Defendants argue that this claim is precluded by the judgment in Thompson’s 2011
federal case. Again, dismissing a claim as precluded at this stage is appropriate only if
documents properly before the Court clearly show that the defense applies. See Muhammad, 547
F.3d at 878; Carr, 591 F.3d at 913.
Under federal law, as under Illinois law, claim preclusion applies if an earlier case
between “the same litigants (directly or through privity of interest)” arose from the “same
transaction (identified by its ‘operative facts’),” and there has been “a final decision in the first

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Again, Thompson’s complaint does not include a full description of the Board’s shifting explanations,
but he attached the Board’s initial letter and grievance rejection to his response brief. Although he did not
attach these documents to his complaint, he relies upon them in the complaint, so the Court may properly
consider them. See Williamson, 714 F.3d at 436.

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suit.” U.S. ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849, 851 (7th Cir. 2009). The judgment
in Thompson’s 2011 case is final, see Cannon v. Burge, 752 F.3d 1079, 1101 (7th Cir. 2014)
(judgment based on settlement is final for purposes of claim preclusion), and the defendants in
the current case were also defendants in that case or in privity with them. Whether the dispute in
this case arises from the same operative facts as the dispute in the 2011 case depends on whether
Thompson’s ultimate discharge should have been part of that case.
Because Thompson learned that he had lost his job before discovery closed in the 2011
case, Defendants contend that he could have added a retaliatory discharge claim to that case and
thus this claim is precluded. They say that Thompson “proffers no justifiable reason” for not
bringing the claim then. Mot. Dismiss at 11. But they offer no authority for the proposition that a
claim like this one, arising after an earlier related federal lawsuit was filed, is precluded even
though the claim was not added to that case. Had Defendants researched the issue, they would
have learned that the “federal rule is that claim preclusion generally does not bar a subsequent
lawsuit for issues that arise after the operative complaint is filed.” Ellis v. CCA of Tennessee
LLC, 650 F.3d 640, 652 (7th Cir. 2011). Thompson filed the operative complaint in the 2011
federal case on May 6, 2013, but he was not fired until August 2013.
Defendants offer no reason to deviate from the general rule. Because Count I does not
arise from the same operative facts as a claim that could have been brought when Thompson
filed the operative complaint in his 2011 case, the Court finds that his retaliatory discharge claim
is not precluded.
The Court notes, however, that one of Thompson’s major arguments against preclusion is
without merit. He contends that the settlement agreement in the 2011 federal case specifically

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preserved his right to pursue the claims in this case regardless of preclusion, pointing to this
provision:
[T]he Agreement is executed except for the following claims contained in
Thompson’s other legal matters currently pending against the Board: 1)
Thompson v. Board, et al., 14 C 6340, consolidated matter, pending in the U.S.
District Court for the Northern District of Illinois, Eastern Division.
Resp. Br. at 4–7. This language, however, means only that the settlement agreement did not
extend to this case. It does not limit Defendants’ ability to raise defenses to Thompson’s current
claims.
2. Issue preclusion (collateral estoppel)
In his 2011 federal case, Thompson claimed that the “unsatisfactory” rating he received
was retaliation for a complaint he had filed with the EEOC in 2010. Judge Guzmán granted
summary judgment on that claim to the defendants, explaining, “There is no evidence . . . that
suggests Evans gave plaintiff a poor performance evaluation for 2011–12 in retaliation for his
2010 filing of a race discrimination charge.” Thompson v. Bd. of Educ. of City of Chicago, No.
11 C 1712, 2014 WL 1322958, at *6 (N.D. Ill. Apr. 2, 2014). Defendants argue that this ruling
precludes a contrary ruling in this case and defeats Thompson’s due process claim.
“Issue preclusion bars successive litigation of ‘an issue of fact or law’ that ‘is actually
litigated and determined by a valid and final judgment, and . . . is essential to the judgment.’”
Bobby v. Bies, 556 U.S. 825, 834 (2009) (citing Restatement (Second) of Judgments § 27
(1980)). Defendants are correct that the earlier grant of summary judgment means Thompson
cannot now claim that his “unsatisfactory” rating was retaliatory. But the question whether he
was fired later in retaliation for the 2011 case has not been decided, and Thompson is not
precluded from arguing that the Board’s proffered reason for firing him at that time—his earlier
“unsatisfactory” rating—was pretextual. The rating could be invalid (and widely known to be
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invalid) without having been in retaliation for an earlier protected act. For example, the rating
could have been the product of personal dislike of Thompson. Or the rating could be completely
valid yet not the true reason for his firing. Accordingly, Defendants’ issue preclusion argument is
unpersuasive.
C. Count II – Due Process
Thompson claims that Defendants denied him due process of law when terminating his
employment. “A public employee who can be fired only for good cause has a property interest in
his or her job and may be deprived of that property interest only with due process of law.”
Carmody v. Bd. of Trs. of Univ. of Ill., 747 F.3d 470, 474 (7th Cir. 2014). “The fundamental
requirement of due process is the opportunity to be heard ‘at a meaningful time and in a
meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333, (1976) (quoting Armstrong v.
Manzo, 380 U.S. 545, 552 (1965)). The specifics of this requirement are “flexible” and depend
on the circumstances of the case. Mathews, 424 U.S. at 334.
In support of his claim, Thompson alleges that he had a property interest in his job as a
tenured teacher and that the Board deprived him of that property through a fundamentally unfair
process. Am. Compl. ¶¶ 24, 52–71. The process was constitutionally deficient, Thompson says,
because the Board relied on his “unsatisfactory” rating to dismiss him despite knowing that the
evaluation was invalid and that a grievance concerning it was still pending. Id.
1. Subject matter jurisdiction
Defendants first argue that Count II must be dismissed under Rule 12(b)(1) for lack of
subject matter jurisdiction. Mot. Dismiss at 6–7. They contend that the claim is really for the
alleged violation of a collective bargaining agreement and that Illinois law gives “exclusive
jurisdiction” over such claims to the grievance process provided in the CBA. Id. at 6; see Bd. of

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Educ. of Warren Twp. High Sch. Dist. 121 v. Warren Twp. High Sch. Fed’n of Teachers, Local
504, 538 N.E.2d 524, 529 (Ill. 1989). Thompson’s response is a bit muddled, but he seems to be
reiterating that his claim is for a denial of federally protected rights rather than for breach of the
CBA. See Reply Br. at 2–3.
The Court concludes that Thompson’s allegations amply support his characterization of
Count II as a due process claim rather than as a claim for violations of a CBA. Although he does
refer to CBA violations, his essential argument is that he was deprived of property (his job)
through a fundamentally unfair process. Whether he was denied due process presents a federal
question, see Carmody, 747 F.3d at 474, and 28 U.S.C. § 1331 provides this court with
jurisdiction to decide it. Moreover—as Defendants acknowledge—Illinois courts require
employees merely to attempt to exhaust their CBA remedies before filing suit. Mot. Dismiss at
6–7, see Zelenka v. City of Chicago, 504 N.E.2d 843, 848 (Ill. App. 1987). According to
Thompson’s allegations, he attempted to use the grievance process, but the Board fell back on
his “unsatisfactory” rating to justify firing him despite that the grievance is still pending. Am.
Compl. ¶¶ 24, 26. The existence of the CBA may have implications for the merits of
Thompson’s due process claim, but it does not strip the Court of subject matter jurisdiction.
Defendants contend later in their motion to dismiss (when discussing another claim) that
Thompson’s “termination hearing is active and ongoing” and thus any due process claim is
unripe. Mot. Dismiss at 27. The success of a due process claim depends on what process the
plaintiff has been afforded, see Carmody, 747 F.3d at 479, so if Thompson does have an ongoing
termination hearing, his due process claim is likely premature. (The exception would be a claim
based on insufficient pre-termination process. Id. at 474–76.) But Thompson does not allege that
he has an ongoing termination hearing. Although he does refer to two pending grievances, see id.

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¶¶ 15, 24, neither concerns his firing. If Defendants are correct that a termination hearing is
ongoing, that fact may defeat this claim at a later stage, but their mere assertion cannot do so.
2. Failure to state a claim
Defendants also argue that Thompson’s due process claim should be dismissed under
Rule 12(b)(6) for failure to state a claim. A complaint must provide a “short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The statement
“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Iqbal, 556 U.S. at 677–78 (quoting Twombly, 550 U.S. at 570).
According to Defendants, Thompson’s due process allegations are deficient because he
did not identify a provision in the CBA that granted him a property right in his job. Mot. Dismiss
at 19–20. Thompson simply alleged that he was a tenured employee. Am. Compl. ¶ 9.
Defendants rely on Palka v. Shelton, 623 F.3d 447, 452 (7th Cir. 2010), in which the Seventh
Circuit stated that if “a plaintiff alleges that the due-process entitlement arises from a collectivebargaining agreement, he must identify specific terms of the agreement that contained a promise
of continued employment.”
However, when all reasonable inferences are granted in his favor, Thompson does not
assert that his entitlement to due process arose from a CBA; he says that it arose from the
Constitution. Palka, therefore, does not apply, and Thompson’s allegation that he was a tenured
teacher is sufficient at the pleading stage to establish that he has a property right in his job. 3

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Additionally, the statement from Palka is dicta. The Palka court declined to decide whether the
plaintiff’s property-right allegations were sufficient and dismissed the due process claim on another
ground. Id. at 452–53. And the case that Palka cites for the stated proposition, Krieg v. Seybold, 481 F.3d
512, 519–20 (7th Cir. 2007), concerned a motion for summary judgment rather than a motion to dismiss.

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3. Claim preclusion
Just as Defendants’ argued in attacking Thompson’s retaliation claim, they argue that his
due process claim is precluded by the judgment in the 2011 federal case. Although they are again
correct that any claim based on the “unsatisfactory” rating alone needed to be brought in the
earlier case, Thompson’s due process claim, like his retaliation claim, is based on his firing. As
explained above, the 2011 case does not preclude Thompson from arguing that the Board
improperly relied on an invalid performance review to terminate his employment.
D. Count III – Fourth Amendment
Thompson claims that Defendant Sullivan (the Board’s Inspector General) violated the
Fourth Amendment by issuing a subpoena to AOL seeking Thompson’s personal emails. Am.
Compl. ¶¶ 72–82. The subpoena, which Thompson attached to his complaint, id., Ex. A., sought
in relevant part “[a]ny historical records of emails sent by Mark A. Thompson . . . to [redacted].”
Id. (Presumably the redacted name is that of the girl who accused Thompson of sexual assault.)
The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const.
amend. IV; City of Los Angeles, Calif. v. Patel, 135 S. Ct. 2443, 2452 (2015). Generally, the
government must obtain a warrant supported by probable cause to conduct a search, though
numerous exceptions have been recognized. See City of Los Angeles, 135 S. Ct. at 2452.
Administrative subpoenas, though they do “implicate[] the Fourth Amendment,” do so “only to
the extent of requiring that the demand for information be ‘sufficiently limited in scope, relevant
in purpose, and specific in directive so that compliance will not be unreasonably burdensome.’”
Big Ridge, Inc. v. Fed. Mine Safety & Health Review Comm’n, 715 F.3d 631, 646 (7th Cir. 2013)
(quoting See v. City of Seattle, 387 U.S. 541, 544 (1967)).

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But the relaxed Fourth Amendment standard for administrative subpoenas does not apply
if the purpose of the subpoena is “principally to further a criminal investigation.” United States v.
Utecht, 238 F.3d 882, 887 (7th Cir. 2001). The subpoena in this case was issued to investigate
the alleged sexual assault of a minor. Although the subpoena was not issued by law enforcement,
the Court must draw all reasonable inferences in favor of Thompson and presume that the
Inspector General planned to turn over any evidence of sexual assault to law enforcement. If that
presumption is correct, the subpoena would be subject to ordinary Fourth Amendment rules. See
id. (“[I]f the IRS uses civil subpoenas without establishing the probable cause necessary for
criminal cases after having made an institutional commitment to recommend prosecution of the
defendant, evidence obtained through these subpoenas possibly could be suppressed at a criminal
trial.”).
1. Failure to state a claim
Defendants do not discuss the standard under which the subpoena should be evaluated.
They simply argue that Thompson has not stated a Fourth Amendment claim because the
subpoena was directed at AOL rather than at him. Mot. Dismiss at 21–22. They seem to be
relying on the “third-party” doctrine, which holds that people do not have a reasonable
expectation of privacy in information that they voluntarily give to a third party. United States v.
Miller, 425 U.S. 435, 442–43 (1976). The third-party doctrine applies to bank records, id., and to
the telephone numbers a person dials, Smith v. Maryland, 442 U.S. 735 (1979). By contrast,
people are generally understood to have a reasonable expectation of privacy in the content of
their private telephone conversations, even when using a public pay phone. See Katz v. United
States, 389 U.S. 347 (1967); United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407
U.S. 297, 313 (1972) (“[Katz] implicitly recognized that the broad and unsuspected

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governmental incursions into conversational privacy which electronic surveillance entails
necessitate the application of Fourth Amendment safeguards.” (footnote omitted).)
The subpoena at issue in this case was indeed directed at AOL, but Thompson alleges
that it sought the content of his personal email. Am. Compl. ¶ 76. Although the question of
whether people have a reasonable expectation of privacy in email stored on a remote server
remains open in this Circuit, the Sixth Circuit concluded in United States v. Warshak, 631 F.3d
266, 288 (6th Cir. 2010), that people do have a reasonable expectation of privacy in the content
of their stored emails and that the government must obtain a warrant before seeking such emails
from an internet service provider. Numerous courts that have agreed with this conclusion. See
e.g., In re Applications for Search Warrants for Case Nos. 12-MJ-8119-DJW & Info. Associated
with 12-MJ-8191-DJW Target Email Address, Nos. 12-MJ-8119-DJW & 12-MJ-8191-DJW,
2012 WL 4383917, at *5 (D. Kan. Sept. 21, 2012) (“The Court finds the rationale set forth in
Warshak persuasive and therefore holds that an individual has a reasonable expectation of
privacy in emails or faxes stored with, sent to, or received thorough an electronic
communications service provider.”); United States v. Ali, 870 F. Supp. 2d 10, 39 n.39 (D.D.C.
2012) (agreeing with Warshak’s conclusion that “individuals have a reasonable expectation of
privacy in the content of emails stored, sent, or received through a commercial internet service
provider”).
The Court agrees with the Sixth Circuit’s assessment in Warshak, 631 F.3d at 283–288.
The content of personal email is more akin to the content of a telephone conversation than it is to
records of telephone numbers dialed or bank records. If Thompson’s allegation that the subpoena
at issue sought the content of his personal email is true, 4 then the issuance of the subpoena
constitutes a search that falls under Katz rather than Smith or Miller, and the third-party doctrine
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See Section III.E.2., infra, for further discussion of the plausibility of this allegation.

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does not control. The Court therefore concludes Count III should not be dismissed for failure to
state a claim.
2. Statute of limitations
Defendants argue that Thompson’s Fourth Amendment claim is barred by the statute of
limitations. Normally a limitations defense must be pleaded in an answer, but a district court may
dismiss a claim under Rule 12(b)(6) as untimely if the complaint reveals that the claim is
unquestionably untimely. Small v. Chao, 398 F.3d 894, 898 (7th Cir. 2005). The limitations
period for claims under 42 U.S.C. § 1983 is taken from state law. Kelly v. City of Chicago,
4 F.3d 509, 511 (7th Cir. 1993). In Illinois, the period is two years. Id.
Defendants, pointing to the date on the AOL subpoena, contend that Thompson needed to
bring his Fourth Amendment claim by July 2013. Mot. Dismiss at 15–16. He did not file this
lawsuit until August 2014.
Thompson responds that he was unaware of the subpoena until February 2013, after a
copy was produced in his earlier federal case. Resp. Br. at 13. Under these circumstances, his
claim is not unquestionably time-barred and cannot be dismissed on that ground at this time.
E. Counts IV and V – Stored Communications Act
Thompson claims in these two counts that the Board and Sullivan violated the Stored
Communications Act, 18 U.S.C. §§ 2701–12, when Sullivan subpoenaed his emails. The Act
allows the government to obtain certain email records, not including “the contents of
communications,” by subpoena and without notification to the subscriber. See id. § 2703(c)(2).
To obtain the content of emails by subpoena, the Act requires that the subscriber first be notified
(with some exceptions). See id. §§ 2703(b), 2705. In both Counts IV and V, Thompson alleges

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that the subpoena sought the content of his email communications and so was not authorized
under the Act. See Am. Compl. ¶¶ 93–102.
1. Statute of limitations
Under 18 U.S.C. § 2707(f), claims for violations of the Stored Communications Act must
be brought within two years. Defendants argue that Thompson’s claims should be dismissed as
time-barred because he filed this lawsuit more than two years after the subpoena issued. But their
argument suffers from the same weakness as their argument about Thompson’s Fourth
Amendment claim: Thompson alleges that he did not learn of the subpoena until February 2013.
2. Failure to state a claim
Defendants also argue that the subpoena complied with § 2703(c)(2), and so Thompson
fails to state a claim. Mot. Dismiss at 22. They contend that the plain language of the subpoena
shows that they did not seek the content of Thompson’s communications. Reply Br. at 11.
Thompson disagrees, arguing that the subpoena, which requested “any historical records”
of communications between him and a particular person, did seek the contents of his emails.
Resp. Br. 20–21. The language in question may well mean, as Defendants contend, merely a
“listing of the emails,” but the Court finds the language to be ambiguous. At this stage, the Court
must accept Thompson’s plausible allegations as true, though they may ultimately be disproved.
See Richards v. Mitcheff, 696 F.3d 635, 638 (7th Cir. 2012) (“[A] judge cannot reject a
complaint’s plausible allegations by calling them ‘unpersuasive.’”). Based on the Defendants’
current arguments, dismissal for failure to state a claim is denied.
F. Count VI – Negligent Infliction of Emotional Distress
Thompson claims that Evans (the principal of Harlan) and Krieger (Director of the Office
of Employee Relations) are liable to him for negligent infliction of emotional distress. They

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acted outrageously, he alleges, in giving him the “unsatisfactory” rating and then firing him
based on that invalid performance review. Am. Compl. ¶¶ 103–11.
1. Subject matter jurisdiction
Defendants argue that the Court lacks subject matter jurisdiction over this Count, again
contending that Thompson is complaining about a violation of the CBA. But their argument fails
for essentially the same reasons discussed in the Court’s analysis of Count II. Again,
Thompson’s claim is not for a violation of the CBA; it is a state-law tort claim based on the
purportedly dishonest and outrageous conduct of certain Defendants, and the Court has
jurisdiction over supplemental state claims under 28 U.S.C. § 1367.
2. Claim preclusion
Defendants also argue that Thompson’s emotional distress claim is precluded by the 2011
federal case because the outrageous conduct Thompson alleges is the conduct surrounding his
“unsatisfactory” evaluation, which could have been litigated in the earlier case. That would be
true except that Thompson is careful to specify that his emotional distress resulted from losing
his job based on the unwarranted negative evaluation. Am. Compl. ¶ 110. If Thompson did not
suffer severe emotional distress until he lost his job in 2013, he could not have stated an
emotional distress claim until after he filed his complaint in the 2011 case. As explained earlier,
the 2011 case does not preclude claims that arose after he filed the operative complaint in that
case. See Ellis, 650 F.3d at 652. Thus Thompson’s emotional distress claim cannot be dismissed
on preclusion grounds.
3. Failure to state a claim
Defendants argue that Thompson has not stated a claim for negligent infliction of
emotional distress. Mot. Dismiss at 22–23. He describes injuries that were caused intentionally

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rather than negligently, they point out, and intentional conduct cannot be the basis for a negligent
infliction claim. See, e.g., State Farm Fire & Cas. Co. v. Watters, 644 N.E.2d 492, 498 (Ill.
1994).
Conceding that he has not stated a negligent infliction claim, Thompson seeks leave to
amend this Count. Perhaps he wants to take another shot at this claim, 5 or he may plan to state a
claim for intentional infliction of emotional distress. Either way, if he wishes to amend his
complaint, he may file a motion for leave to do so and attach the proposed amendment. Count VI
is dismissed.
G. Count VII – Negligent Supervision
Thompson’s allegations in support of Count VII are confined to the Board’s failure to
prevent the unfair “unsatisfactory” rating. Am. Compl. ¶¶ 112–21. This Count is not about the
Board’s supervision during Thompson’s ultimate dismissal. He does reference losing his job
because of the negative performance evaluation, id. ¶ 120, but his job loss would go to damages.
This claim suffers from numerous weaknesses. Most dispositive is that the 2011 federal
case precludes it. As previously explained, under federal law three elements must be present for
claim preclusion to apply: “a final decision in the first suit; a dispute arising from the same
transaction (identified by its ‘operative facts’); and the same litigants (directly or through privity
of interest).” U.S. ex rel. Lusby, 570 F.3d at 851 (citation omitted).
The Board was a defendant in the 2011 federal case, and Thompson brought a retaliation
claim based on the “unsatisfactory” rating in that case. There is no reason that he could not have

5

If Thompson does want to pursue a negligent infliction of emotional distress claim, he should keep in
mind that negligent infliction claims in Illinois require that the plaintiff have suffered a physical injury
contemporaneous with the emotional one or at least have been in the “zone of danger” when someone else
suffered a physical injury. Rickey v. Chicago Transit Auth., 457 N.E.2d 1, 5 (Ill. 1983). Thompson does
not allege a physical injury. (His general reference to suffering “physical stress” is insufficient.)

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brought his negligent supervision claim in that case as well. He settled the case instead, and the
judgment is final. Count VII is dismissed.
H. Count VIII – Illinois Personnel Records Review Act
In this Count, Thompson claims that Defendants violated the Illinois Personnel Records
Review Act (PRRA), 820 ILCS 40 et seq., in two ways. First, he claims that they violated the
PRRA’s “open records” provision by refusing to give him personnel records relating to his two
suspensions. Employers are required to provide employees with access to their personnel files
unless a listed exception applies. Id. §§ 2, 10. Second, he claims that they violated § 13 of the
PRRA by retaining records of the DCFS investigation of Thompson even after DCFS declared
the abuse report “unfounded.” Employers are required to purge records of any DCFS
investigation that ended with a finding of “unfounded.” Id. § 13.
The PRRA creates a private cause of action for violations, though employees must file a
complaint with the Department of Labor and await its rejection before filing a lawsuit. Id.
§ 12(b)–(c). Thompson alleges that he did so, which is confirmed by a letter from the
Department of Labor attached to his complaint. Am. Compl. ¶ 138, Ex. B.
1. Failure to state a claim
Defendants contend that Thompson has not stated any PRRA claim, first arguing that
they were not obliged under the Act to give Thompson access to the personnel records at issue.
Mot. Dismiss at 23–24. They point to the disclosure exception for records that may be
discovered in a judicial proceeding. See 820 ILCS 40/10(f).
Thompson responds that Defendants refused to produce the records in question during
discovery in his other cases. Resp. Br. 21–22. See also Am. Compl. ¶ 125. If so, the records do

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not obviously fall under § 10(f). The Court thus concludes that Thompson has stated a claim for
a violation of the PRRA’s “open records” provision, § 2.
Thompson’s claim about the Board’s failure to purge the DCFS records does not fare as
well. Defendants contend that Thompson does not state a claim under § 13 of the PRRA because
he did not allege that he provided the Board with a copy of the notice he received from DCFS.
Section 13 provides:
An employee upon receiving written notification from the Department of Children
and Family Services that an investigation has resulted in an unfounded report
shall take the written notification to his or her employer and have any record of
the investigation expunged from his or her employee record.
820 ILCS 40/13. Thompson responds it was sufficient for him to allege that he emailed CPS
General Counsel to notify him of the “unfounded” finding. Resp. Br. at 23; see Am. Compl.
¶¶ 132–33.
The Court agrees with Defendants that the alleged email was insufficient to comply with
the requirements of § 13 of the PRRA, so Thompson’s claim under that section must be
dismissed. If Thompson did in fact provide the Board with a copy of the written notice he
received from DCFS, he may move to amend his complaint.
2. Statute of limitations
Defendants also seek the dismissal of Thompson’s PRRA claims as time-barred. The Act
does not specify a limitations period, but Defendants argue that the Tort Immunity Act, 745
ILCS 10/8–101, imposes a one-year limitations period on PRRA claims. That period, they say,
expired August 7, 2014, one year after the Department of Labor declined to take action on
Thompson’s behalf.
Thompson responds that the Tort Immunity Act is inapplicable to his claims because he
seeks declaratory and injunctive relief rather than damages. Indeed, the one-year limitations
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period in the Tort Immunity Act does not apply to actions seeking “relief other than damages.”
745 ILCS 10/2–101; see also Raintree Homes, Inc. v. Vill. of Long Grove, 807 N.E.2d 439, 444
(Ill. 2004) (“Plaintiffs’ claim is an action which seeks ‘relief other than damages,’ as set forth in
the first sentence of section 2–101, and is, therefore, excluded from the Act.”).
In their reply brief, Defendants continue to insist that the Tort Immunity Act does apply,
but they do not address § 2–101 or the Raintree Homes case cited above. Having failed to cite
any relevant authority for their position or to respond meaningfully to Thompson’s argument,
they have failed to persuade the Court that a one-year limitations period applies. The Court
declines to rule at this time on what the applicable limitations period actually is.
I. Counts IX, X – Conspiracy to Deny Civil Rights
Thompson’s claims in Counts IX and X are concerned primarily with Defendants’
conduct during various legal proceedings, including his 2011 federal case. He claims under
42 U.S.C. §§ 1985(2)–(3) and 1986 that Defendants’ withholding of his personnel file
constituted a conspiracy to deny him access to the courts and to obstruct justice.
Defendants move to dismiss these counts on multiple grounds, including failure to state a
claim, statute of limitations, and preclusion. Their statute of limitations and preclusion arguments
are unpersuasive at this stage for the same reasons they were unpersuasive as applied to some of
the other claims in this case. The Court agrees, however, that Thompson has not stated a
conspiracy claim.
Under 42 U.S.C. § 1985(2), a person can be liable for conspiring to injure a party or
witness for attending or testifying in court. Wright v. Illinois Dep’t of Children & Family Servs.,
40 F.3d 1492, 1507 (7th Cir. 1994). If the court in question is a state court, the conspirators must
have been motivated by class-based animus, but that requirement does not apply when the court

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in question is federal. Id. Under 42 U.S.C. § 1985(3), a person can be liable for conspiring to
obstruct justice but only if the conspiracy was motivated by class-based animus. See Bray v.
Alexandria Women’s Health Clinic, 506 U.S. 263, 268 (1993) (liability under § 1985(3) requires
that “‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay]
behind the conspirators’ action.’” (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971))).
Thompson includes allegations about both his state and federal cases, but he does not allege
class-based animus.
Defendants argue that, with no allegation of class-based animus, Thompson cannot state a
§ 1985(2) claim about the state court proceedings. They then argue that Thompson also has not
stated a § 1985(2) claim about the 2011 federal case because he settled that case, mooting any
claim based upon it. Thompson’s only response is that Defendants have waived any argument
about his § 1985(3) obstruction-of-justice claim by not addressing it. Resp. Br. at 23–24.
The Court holds that Thompson, because he did not allege class-based animus, has not
stated a claim under § 1985(2) for denial of access to a state court. In the same way, he has not
stated a § 1985(3) obstruction claim. 6
The Court also agrees with Defendants that any §1985(2) claim based on Thompson’s
allegations about the 2011 federal case must be dismissed. His allegation supporting that claim is
that Defendants defied a discovery order in that case. Am. Compl. ¶143. He seems to be looking
for a backdoor to reopen old discovery disputes. His chance to seek redress for Defendants’
alleged noncompliance with discovery orders in the 2011 federal case was during that case,
which he chose to settle.

6

Defendants are excused for not addressing that claim explicitly. It was melded with the § 1985(2) claim
in Thompson’s complaint, and their argument about class-based animus squarely applies to the claim.

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Thompson’s claim against the Board under § 1986 must also be dismissed. That
provision requires knowledge of a conspiracy, and “in the absence of a viable claim under
§ 1985[(2)], a § 1986 claim cannot exist.” Hicks v. Resolution Trust, 970 F.2d 378, 382 (7th
Cir. 1992).
J. Count XI
Thompson claims in Count XI that Defendants are liable under 42 U.S.C. § 1983 for
denying him equal protection of the laws by concealing evidence that he was not guilty of
“abuse.” Am. Compl. ¶ 165. Presumably he is referring to the sexual assault investigation.
Defendants argue that this Count should be dismissed for failure to state a claim, and the
Court agrees. Thompson says that he was denied equal protection of the laws, yet he never
explains how Defendants treated him differently than anyone else. By failing to allege facts that
show disparate treatment, he has failed to allege an equal protection claim. See LaBella
Winnetka, Inc. v. Vill. of Winnetka, 628 F.3d 937, 942 (7th Cir. 2010). Mere “legal conclusions”
do not satisfy the standard laid out by the Supreme Court in Twombly and Iqbal. McCauley v.
City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011). Count XI is dismissed.
K. Count XII – Fabrication of Evidence
Thompson voluntarily dismisses this claim.
Conclusion
For the reasons set forth above, the Court grants Defendants’ motion to dismiss Counts
VI, VII, VIII (in part), and IX–XII. The motion is denied as to the remaining counts. In the event
that Thompson wishes to request leave to amend his complaint consistent with this order, any
such motion must be filed within 14 days.

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IT IS SO ORDERED

ENTER: 1/29/16

__________________________________________
JOHN Z. LEE
United States District Judge

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